A. Michael Froomkin
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[Although the Court] has often stated [that the Fifth Amendment] protect[s] personal privacy, . . . [the] Court has never suggested that every invasion of privacy violates the privilege. . . . [T]he Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.{534}On the other hand, the Court has never questioned the special nature of some private noncommercial personal papers, such as diaries, and has held that these retain their Fifth as well as Fourth Amendment protection.{535} With one exception, neither the Fourth nor the Fifth Amendment has ever been understood to allow the government to require
[Page 834]civilians, in peacetime, to
structure their lives to make hypothetical future searches by law
enforcement easy. That exception, the required records doctrine,
is inapposite to mandatory key escrow.{536} Instead, the Fifth Amendment is potentially
relevant to mandatory key escrow in two ways. The required
disclosure of the chip key resembles the required disclosure of a
private paper, which may have some Fifth Amendment protection, and
the forced utterance of a LEAF may be the type of incriminating
testimony proscribed by the Fifth Amendment.
[Page 835]compulsory
production and authentication."{541} Nevertheless, the rule found
"abhorrent" in 1886 is now practically the law.{542}
The Supreme Court has eliminated most Fifth Amendment protections
from incriminating documentary evidence sought by compulsion. First,
the Supreme Court narrowed the privilege so that it applies only if
the act of producing papers or records, by itself, has a
self-incriminatory communicative or testimonial aspect. If the act of
handing over the papers is noncommunicative--that is, if it neither
reveals the existence of the document nor authenticates it--then the
Fifth Amendment ordinarily does not apply.{543} Second, only
natural persons can find shelter under the Fifth Amendment, and only
for papers they both own and control. Thus, corporations can never
claim the privilege, and neither can natural persons with regard to
corporate records, even if they created and now control those
records.{544}
Third, once papers are handed to [Page
836]another, the legitimate expectation of privacy needed
to maintain a claim under either the Fourth or Fifth Amendments
disappears.{545}
Fourth, records required to be kept for legal or regulatory purposes
are outside the privilege.{546} Fifth, and only tangentially related to
documents, the Supreme Court has held that persons can be forced to
perform nontestimonial acts such as giving handwriting samples.{547} Sixth, aliens
outside the sovereign territory of the United States do not ordinarily
enjoy Fifth Amendment rights.{548}
The Court's narrowing interpretations notwithstanding,
Boyd is not completely toothless. Boyd has a
residual vitality for nonbusiness, nonfinancial, private papers and
documents that are kept in the home, if only because the Supreme
Court has yet to compel production of such a document.{549}
2. Is a Chip Key or a Session Key
"Incriminating"?
The hornbook rule is that testimony must be incriminating when
uttered in order to be entitled to protection under the Fifth
Amendment. The testimony must relate to past conduct and, if it
does not directly incriminate ("Yes, I did it") must at
least create a "substantial" and "real" hazard
of prosecution for the Fifth Amendment to apply.{550}
The Fifth Amendment does not protect testimony that might become
incriminating through future conduct. In United States v.[Page 837] Freed,{551} the Supreme Court
upheld a National Firearms Act registration requirement against a
Fifth Amendment claim that the disclosed information might be used
against the defendant if he committed an offense with a firearm in
the future.{552}
Forced disclosure of a chip key and a session key fit uneasily into this framework. The forced disclosure of a chip key{553} before the chip has ever been used to communicate cannot be incriminating because nothing has happened yet. Thus, mandatory key escrow itself fits squarely within the Freed rationale. In contrast, the LEAF raises a more delicate problem. Because the LEAF precedes the actual conversation, forced utterance of a LEAF could be said to fall within the Freed rationale also. But this is really too facile to be credible. The encrypted session key within the LEAF is unique, and it is directly tied to the conversation that follows it. In any case, whether the LEAF is part of the conversation or not, it is an utterance that creates a "substantial" and "real" hazard of prosecution if the conversation that follows is an incriminating one, and a public servant happens to be listening.{554} On the other hand, the Supreme Court has emphasized that nontestimonial compelled disclosures are not privileged,{555} and the LEAF itself is not testimonial, save insofar as it ties a particular conversation to a particular pair of chips.
In summary, the Fifth Amendment may not protect disclosure of a chip
key against mandatory key escrow, but it protects individuals against
the routine warrantless use of that key to decrypt the LEAF
and, especially, to decrypt an incriminating communication. Because
the stated purpose of escrowed encryption is to allow the government
to retain the abilities it currently has, and the government accepts
that a warrant is required to conduct a wiretap, the Fifth Amendment
imposes no significant restriction on a[Page
838]mandatory key escrow proposal of the type hypothesized.
D. Privacy Issues
The constitutional right to privacy derives from the First, Third,
Fourth, Fifth, Ninth, and Fourteenth Amendments, although it exceeds
the sum of its parts.{556} The right to privacy has at least three
components: (1) a right to be left alone; (2) a right to autonomous
choice regarding intimate matters; and (3) a right to autonomous
choice regarding other personal matters.{557} There is no
question that mandatory key escrow would infringe on each of these
component rights. The question, already partly canvassed above,{558} is whether the
courts would consider the intrusions reasonably related to a
sufficiently compelling state interest to justify the intrusion. As
might be expected, the limitations on mandatory key escrow arising
from the right to privacy conform closely to those derived from the
First, Fourth, and Fifth Amendments from which the privacy right
partly emanates. Privacy jurisprudence is in some turmoil, however,
and it is possible that privacy will prove to be the most fertile area
for legal adaptation to the new challenges posed by increasing state
surveillance power and compensating private responses such as
cryptography.
[Page 839]such as the choice of
friends, political party, vocation, and other allegiances.{559} Disputes concerning
this category, such as alleged infringements of associational
freedom, tend to be adjudicated directly under the rubric of one or
more amendments in the Bill of Rights rather than by appeal to
privacy principles. These aspects of privacy law were canvassed
above{560} and will not
be repeated here.
Mandatory key escrow appears comparable in its intrusive effects
to the regulatory scheme upheld in Whalen, so long as the
courts hold the government to its promise that keys will remain
secret and will be released only pursuant to a warrant or to a very
limited number of other lawful orders. Without that proviso,
mandatory key escrow would verge upon unjustified data
collection.{568} The
warning in Whalen that the Court is "not unaware of the
threat to privacy implicit in the accumulation of vast amounts of
personal information in computerized data banks or other massive
government files"{569} suggests, however, that informational privacy
rights may grow in response to new technological threats to
privacy.
[Page 841]described certain decisions
about intimate association and family- and sex-related decisions as
falling within a special privacy zone for "marriage,
procreation, contraception, family relationships, and child rearing
and education."{570} The contours of this zone have always been
fuzzy, in part because of long-standing decisions forbidding
certain religious minority marriage practices{571} that would logically
appear to belong within the zone of privacy described by cases such
as Griswold v. Connecticut, Eisenstadt v. Baird,
Paul v. Davis, and Roe v. Wade.{572} The fuzziness
currently is at an all-time high because of the Court's decision in
Bowers v. Hardwick{573} and the continuing controversy concerning the
right[Page 842]to abortion.{574}As applied, this second strand of privacy jurisprudence is primarily directed at the preservation of personal autonomy,{575} and especially that autonomy relating to the sexual and reproductive practices and values of the traditional family and the "traditional unmarried couple."{576} Secrecy has a role to play here too, because sometimes secrecy is a prerequisite to the exercise of autonomy, even (or especially) within the family.{577}
Furthermore, electronic communications will increasingly become
a critical part of intimate association. In a world in which the
commuter marriage is increasingly common, electronic communications
such as the telephone, fax, and especially e-mail (which is cheaper
and less intrusive than a telephone, more private than a fax, and
often instantaneous) are increasingly becomingthe glue that holds
marriages and other intimate relationships together.{578} The current rule,
which provides much greater privacy protection to the bedroom than
to the intimate, transcontinental, interspousal e-mail,{579} may soon need
revision.{580} Such a
revi[Page 843]sion should begin
by reaffirming what remains of Boyd, particularly as it
applies to personal papers such as diaries.{581}
E. What Next?
On balance, as the law stands today, private, noncommercial users
of encryption probably have a Fourth Amendment right to resist
mandatory key escrow. Whether commercial users or corporations
would have such a right under current doctrines is less clear.
Even the existence of the right for private, noncommercial users
appears to be a distressingly close question given the current
state of civil rights doctrine and the great importance that the
courts give to law enforcement and national security. The law in
this area has undergone great change in the past two decades, and
there is no reason to believe that the evolution has stopped.
The collapse of the distinction between home and office, fueled in part by the growth of telecommuting, will place a further strain on existing rules that attempt to distinguish between private, noncommercial activities whose classical locus is the home, and less private, more commercial activities whose traditional location was the office. If the courts further erode the remnant of the zone of privacy that still surrounds the home, the growth in freedom to work at home will have come at a high price.